Why protections against 'sex discrimination' should include gays and lesbians

Legislation to protect gays and lesbians from discrimination in the workplace has languished for years on Capitol Hill, even as the Supreme Court has ruled that same-sex couples may marry and Congress has voted to allow gay Americans to serve openly in the military.

But now, while they continue to press for federal legislation that explicitly outlaws discrimination on the basis of sexual orientation, some gay-rights supporters want the Obama administration to declare that such protection already exists in the Civil Rights Act's ban on discrimination based on an individual's "sex."

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It's an audacious approach to overcoming legislative gridlock, but it's also a defensible reading of the law in light of an evolving understanding of sexuality, gender and the harm inflicted by stereotypes about both aspects of human existence.

Generations ago, it would have seemed obvious that "sex discrimination" referred only to treating male employees or job applicants better than female ones (or vice versa). But discrimination against women and discrimination against gays and lesbians (and transgender people) all are rooted in stereotypes about "proper" expressions of gender and sexuality.

Moreover, the Supreme Court already has recognized that on-the-job sexual harassment — a form of sex discrimination that violates the Civil Rights Act — can occur even when both the aggressor and the victim are of the same sex. In 1998, the court ruled in favor of a male oil-rig worker who alleged that he had been the target of sexually oriented touching and rape threats from male co-workers.

Writing for a unanimous court in that case, Justice Antonin Scalia acknowledged that "male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with" when it enacted Title VII of the Civil Rights Act. But he added that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils."

Likewise, even if the members of Congress who voted to ban "sex discrimination" were primarily concerned with discrimination against women by men, the legal protections they established can be interpreted more broadly.

That is what the American Civil Liberties Union wants the Obama administration to do. In a letter to Atty. Gen. Loretta Lynch, the ACLU called for a "formal announcement" that the Justice Department will take the position in litigation that discrimination on the basis of sexual orientation constitutes "sex stereotyping" and amounts to sex discrimination under current law.

The administration has yet to issue such a sweeping statement, although it has made clear that it regards discrimination against transgender employees as a form of sex discrimination. But the Equal Employment Opportunity Commission has endorsed the view that discrimination against gays and lesbians also amounts to sex discrimination, and the Justice Department may be inching toward the same position. Last month, BuzzFeed reported that department lawyers, in disputing a claim of discrimination by a gay former Federal Aviation Administration employee, focused on the facts in the case rather than arguing that the law against sex discrimination didn't apply to discrimination on the basis of sexual orientation.

Ideally, Congress would approve legislation explicitly outlawing employment discrimination on the basis of sexual orientation and gender identity. The Equality Act introduced in Congress last year would accomplish that objective, along with prohibiting discrimination against gay, lesbian and transgender Americans in housing and public accommodations. But, given Republican control of Congress and the fact that this is an election year, it's unlikely that any such legislation will be enacted in the near future.

President Obama has endorsed the Equality Act, but that doesn't mean his administration can't also embrace a broad definition of sex discrimination under current law and defend that understanding in court. If members of Congress are uneasy about the administration reinterpreting the Civil Rights Act in this way, they have an easy alternative: Pass legislation making it clear that no one may be denied a job or a promotion because of their sexual orientation or gender identity.